Wednesday, July 01, 2020

Will the History of US Physician Board Certification Sink MOC?

In the closely followed Siva v American Board of Radiology (ABR) antitrust case (1:19-cv-01407), the Plaintiff recently filed an Opposition to Dismiss the First Amended Complaint (FAC) earlier this week. At issue in this case is whether intial certification and MOC are a single product or two separate tied products. In this newest legal docket entry, the Plaintiff added additional arguments from a recently decided Viamedia, Inc. v. Comcast Corp. antitrust tying opinion recently decided in the Seventh Circuit Court that demonstrates the importance of the history of US Board Certification is to the tying claim made by the Plaintiff:
ABR also virtually ignores the new Sherman Act, Section 2 tying opinion, Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), in which the Seventh Circuit reversed summary judgment for defendant, rejecting the same single product arguments ABR makes here. First, Viamedia holds that whether there is separate demand must be assessed before the tie is imposed, and not after. Viamedia, 951 F.3d at 469 (“the market must be ‘assessed at the pre-contract rather than post-contract stage’”) (quoting Philip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, ¶ 1802d6, at 89 (4th Ed. 2018) (“Areeda & Hovenkamp”)).

This guts both premises of ABR’s single product theory: (1) that certifications should be analyzed post-MOC, with MOC viewed as a component of a “multi-stage” process (ABR at 8), rather than before ABR imposed its tie forcing radiologists to buy MOC or have their certifications revoked; and (2) as to MOC, “the relevant inquiry” is whether there currently is conflated demand for a single CPD product (MOC) and certifications as a result of ABR’s tie (id.), rather than inquiring whether there was separate demand by radiologists for CPD products before ABR tied certifications and MOC. See Viamedia, 951 F.3d at 469 (consumers “viewed the services as separate prior into entering into their present [tying] contracts with Comcast”). The Viamedia imperative to assess demand before the tie makes perfect sense because focusing on demand after the tie is forced on consumers inevitably rewards the defendant who has already successfully reduced competition, the very goal of the illegal tie. Viamedia makes clear that a defendant like ABR who forces consumers to purchase a tied product, cannot then parlay its own coercion into evidence of lack of separate demand for a product that the victimized consumers would not otherwise purchase, exactly what ABR argues here. (ABR at 8-9, 11).
Additionally, the new brief suggests the adhesion contract physicians must sign when enrolling in MOC (or one of its Continuous Professional Development (CPD) successors) are irrelevant to the antitrust issues being decided by the court:
ABR argues repeatedly that Dr. Siva “knew” from “the outset” based on a “contract” that MOC was tied to certifications. (ABR at 3-4, 10, 11). In doing so, ABR misrepresents information and documents about MOC that Dr. Siva received “after he purchased his certification.” (¶ 255; emphasis added).7 Dr. Siva alleges that neither his application for certification nor the certificate itself referred to “initial” certification or to MOC. (¶¶ 250, 252- 253). (emphasis mine) The FAC also alleges no contract obligating radiologists to buy MOC; nor does any such contract exist. Radiologists are forced to buy MOC because if they do not, ABR revokes their certifications, without which a successful medical career is impossible.

At any rate, ABR’s argument is a diversion. Awareness that a tie exists when the tying product is bought does not make the tie any less coercive. Radiologists’ knowledge of ABR’s monopoly power and leverage cannot absolve ABR of its illegal tie.
There is no question the heat is being turned up of the American Board of Radiology and this new legal precedent set by Viamedia prioritizes the importance of the history and original intent of board certification (that is, of assuring adequate residency training) is an important factor in establishing the illegal product tie that ABR has leveraged with MOC against its diplomates for their financial benefit.

ABR has approximately three weeks to respond to these latest arguments.


PS: Physicians wishing to help the ongoing legal efforts to end MOC for all subspecialties are encouraged to contribute to the GoFundMe page created to support the plaintiffs.


Precedent said...

If the Seventh Circuit created a precedent in their recent reversal and opinion on tying (in Viamedia, Inc. v. Comcast Corp) then the ABR's position will be too weak to fly. The honorable judge Jorge L. Alonso assigned to the current case would not be inclined to dismiss.

During Seventh Circuit Court Judge Alonso's confirmation hearings (an Obama appointee, btw) answered a Senator's query about overruling precedent.

"3. If a decision is precedent today while you’re going through the confirmation process, under what circumstance would you overrule that precedent as a judge? - Senator Ted Cruz

Response: If confirmed as a district court judge, there are no circumstances under which I would overrule precedent. I would be bound by precedent of the Seventh Circuit and the Supreme Court." - Judge Alonso

MOC said...

Physicians have been dispossessed of their rights. Patients suffer the consequences.

Anonymous said...

ABMS MOC (CPD) is a gauntlet of useless pain and suffering for doctors. The ABMS and all 24 medical specialty boards are monopolists forcing their costly corporate agenda on the profession of medicine.

Unknown said...

Just happy to have gotten out of this rotten, thankless profession. This board nonsense will never end because doctors as a group are the most spineless and selfish cowards you will ever know. I felt like an indentured servant all the years I worked. Every day now feels like Sunday for me.

Dr D said...

MOC creates endless anxiety, stress and depression. Loss of life. Loss of profession and professionals who exit or do not become physicians. It all hurts. MOC needs to go. Patients who are losing good doctors and patient contact time suffer. Everyone needs to grow a spine and end this public menace created by the ABMS bureaucrats for their own financial benefit.

Truth with Iconic Precision and Humor said...

This Twitter account of a Chicago-area physician is iconic with its anti-MOC stance!

If you are looking for the truth about MOC and views from the real world on the "quality assessment cartel" this Twitter feed is it. (Precise and to the point without mincing words.)

Like most truth tellers Dr. Rico has been censored by the monopolist cartel members that are currently being sued by physicians for racketeering, anti-trust violations and unjust enrichment.

Add violations of first amendment rights/free speech to the list of complaints. Rico gives us accurate assessments of those who "assess" physicians without any accountability.

The ABMS/ABIM, ACP and others have been exposed.

Anonymous said...

The ABMS "umbrella" and 24 "medical specialty boards" are a propaganda ministry whose main purpose is to destroy the profession of medicine.